ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-70000177-00M0
DATE: 20140819
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
GERMAN ALVARENGA-ALAS
Respondent
Jay Spare, for the Crown/Applicant
Stephanie Heyens, for the Respondent
HEARD: June 16, 2014
r.f. goldstein j.
[1] Madam Justice Rutherford of the Ontario Court of Justice convicted Mr. Alvarenga-Alas of two counts of sexual assault. Her Honour suspended the passing of sentence and put Mr. Alas on probation for two years. At the sentencing hearing the Crown, without opposition from the defence, erroneously indicated that Mr. Alvarenga-Alas should be placed on the sex offender registry for ten years. Her Honour then imposed a ten-year order. In fact, the order should have been for life. The Crown brought the error to Rutherford J.’s attention and asked that she correct it. After hearing submissions and considering the issue, Rutherford J. found that she was functus officio and refused to make the correction.
[2] The Crown now brings an application for the prerogative remedy of mandamus, arguing that Rutherford J. should have exercised her jurisdiction and made the order. Notwithstanding Rutherford J.’s careful decision, I very respectfully disagree with Her Honour. A trial judge has the jurisdiction to correct an erroneous sex offender registry order. For the reasons that follow, there will be an order in the nature of mandamus.
FACTS
[3] On April 26 2011 Mr. Alvarenga-Alas sexually assaulted a woman at a fruit market. He inserted a finger into her buttocks. She moved away. Mr. Alvarenga-Alas followed her and did it again. She swore at him and he left the fruit market. She went to the subway. Mr. Alvarenga-Alas followed her to the subway. As she took a seat on the train, he sat down beside her. He was then arrested at the Broadview subway station.
[4] The Crown elected to prosecute Mr. Alvarenga-Alas by way of summary conviction in the Ontario Court of Justice. On September 21 2012 Rutherford J. found Mr. Alvarenga-Alas guilty of two counts of sexual assault. On March 1 2013 Her Honour, in very extensive and detailed reasons, suspended the passing of sentence and imposed a two-year period of probation. Since the offences are primary designated offences, she ordered that a sample of Mr. Alvarenga-Alas’s DNA be taken. She also ordered that Mr. Alvarenga-Alas comply with the Sex Offender Information Registration Act, S.C. 2004, c.10 (which I refer to as “SOIRA”) for a period of 10 years.
[5] Although the Crown submitted to Rutherford J. that a ten-year order was appropriate, and the defence did not demur, the Crown shortly discovered that an error had been made. The Criminal Code requires that a lifetime order be imposed. On March 26 2013 the Crown applied to Rutherford J. to correct the sentence and impose a lifetime SOIRA order. After hearing submissions from counsel, Her Honour took some time to consider the matter. On June 28 2013, she decided that she was functus officio and declined to correct the order.
ISSUES
[6] I begin by pointing out that the error made by Rutherford J. is not uncommon, which is why the issue has been litigated. I have also made this error: see R. v. S.A., an unreported decision of the Superior Court of Justice dated July 30, 2013.
[7] There is no doubt that an error was made and that a lifetime order SOIRA order should have been imposed. The real question is whether Rutherford J. should have corrected the error, or whether it needs to be corrected by way of a summary conviction appeal.
[8] There is conflicting authority on both points. One line of authority in this Court holds that a sentencing judge has the inherent authority to correct a SOIRA order after it is made: see R. v. D.M., 2013 ONSC 141, [2013] O.J. No. 83 (Sup.Ct.). A line of authority in the Ontario Court of Justice holds that a sentencing judge does not: R. v. J.E. [2013] O.J. No. 2125 (O.C.J.). The problem is that there is no clear route of appeal from the decision of the Ontario Court of Justice sitting as a summary conviction court in relation to a SOIRA order.
[9] It is difficult to imagine that an erroneous SOIRA order could not be corrected either by a sentencing judge or by an appellate court. An obvious injustice could result: an offender might be erroneously subjected to a lifetime SOIRA order when, in fact, the offence called only for a 10-year order. No rule of statutory interpretation requires a court to find that Parliament created a regime where injustice could be done but not undone.
[10] In my view, therefore, there are four issues that need to be canvassed:
- Did the Criminal Code permit Rutherford J. to correct the error?
- If not, did Rutherford J. have inherent jurisdiction to correct the error?
- Can a SOIRA order be appealed?
- Should a mandamus order issue?
ANALYSIS
[11] I commence with some general comments about the scheme of the SOIRA provisions.
[12] The SOIRA established a database of information regarding sexual offenders. Sexual offenders are required to register and provide information. The purpose of the Act, which is set out in s. 2, is to help police services investigate and prevent crimes of a sexual nature.
[13] In general, there are three sections of the Criminal Code that apply. Section 490.011 of the Criminal Code sets out the offences that will generate a SOIRA order. Section 490.012 of the Criminal Code sets out the circumstances under which a court shall make a SOIRA order. Section 490.013 of the Criminal Code sets out the duration that an offender will remain on the registry. The duration of a SOIRA order depends on the nature of the offence and the number of convictions. A SOIRA order (and the applicable duration) is mandatory where the statutory conditions are met. There is, however, some discretion left to the Crown, as I will note, where certain aggravating factors can be proven.
[14] A court that convicts an offender of certain designated offences under s. 490.011 of the Criminal Code (or delivers a verdict of not criminally responsible) is required to make a SOIRA order: s. 490.012(1). There is no discretion in either the Crown or the sentencing judge.
[15] What are these offences? In general, they are sexual offences, offences related to sexual exploitation, or some offences involving children. Subsection 490.011(a) sets out sexual offences currently in force, and other offences involving children, such as removing a child from Canada or prostitution involving children under the age of 18. Sexual assault contrary to s. 272 of the Criminal Code is obviously one of these offences and applies in this case. Subsections 490.011(c), (c.1), and (d) set out earlier versions of sexual offences, which captures historic sexual assaults. By “historic” I simply mean offences committed when earlier versions of the Criminal Code were in force. Subsection 490.011(e) refers to attempts or conspiracies to commit one of the offences set out in subsections 490.011(a), (c), (c.1) and (d).
[16] SOIRA may also come into play where a court convicts an offender of certain other offences (such as murder, kidnapping, or break and enter). Where the Crown, on application, establishes beyond a reasonable doubt that the offender committed one of those other offences with the intent of committing a designated sexual offence the court is required to impose a SOIRA order: s. 490.012(2). The Crown has discretion as to whether or not it will bring the application. If it brings the application and succeeds, the sentencing judge must make the order. It is the Crown, not the judge, which has the discretion, although the judge obviously makes the determination as to whether the Crown has proven this aggravating factor beyond a reasonable doubt. This provision is analogous to a “Gardiner hearing”: R. v. Gardiner: 1982 30 (SCC), [1982] 2 S.C.R. 368.
[17] Section 490.014 provides for an appeal on a question of law or mixed fact and law where an order is made under s. 490.12(2). This is the only part of the SOIRA legislation that provides for an appeal. That section was amended in 2011 to narrow the basis upon which an appeal can be taken.
[18] What are these offences captured by s. 490.012(2)? They are found in paragraphs 490.011(1)(b) and (f). Paragraph (b) sets out offences such as murder, kidnapping, breaking and entering, and human trafficking. Paragraph (f) refers to attempts or conspiracies to commit one of the offences set out in paragraph (b).
[19] SOIRA also has retrospective effect: R. v. Whiting, 2013 SKCA 127, [2013] S.J. No. 710, 427 Sask.R. 52, 304 C.C.C. (3d) 342, 2013 CarswellSask 821 (C.A.). Where the Crown establishes that an offender has been convicted of one of the sexual offences caught by s. 490.12(3) prior to the enactment of the SOIRA legislation a judge must make a SOIRA order. Again, the Crown has discretion as to whether or not to bring the application. This subsection omits the “beyond a reasonable doubt” language found in s. 490.012(2), which implies that it is an administrative provision where a judge need not engage in a detailed analysis of the evidence and the law. Presumably the Crown need only adduce a certificate of conviction or indictment from the earlier proceeding and the SOIRA order will follow.
[20] Subsection 490.012(3) catches the offences found in paragraphs 490.011(1)(a), (c), (c.1), (d), and (e). As noted, these are the main current and historic sexual offences, sexual exploitation offences, or offences involving children as well as attempts and conspiracies to commit these offences. (There are also provisions that apply to an offender under the National Defence Act and some ancillary notice provisions that have no application to this case).
[21] I turn now to the duration of a SOIRA order.
[22] The duration of a SOIRA order depends on the maximum penalty of the predicate offence that was committed (s. 490.013(2)) or the number of offences (s. 490.013(2.1)). Where the maximum penalty is 2 or 5 years, or the offence was prosecuted by way of summary conviction, the duration of the SOIRA order is 10 years. Where the maximum penalty is 10 or 14 years, the duration of the SOIRA order is 20 years. Where the maximum penalty is life, the duration of the SOIRA order is for life.
[23] Where an offender is convicted (or found not criminally responsible) of more than one designated offence the duration of the SOIRA order is for life: s. 490.013(2.1).
[24] I note that the result of the scheme of s. 490.013 is somewhat incongruous. An offender might be convicted of two relatively minor sexual offences where the Crown has proceeded summarily and yet find himself subject to a SOIRA order for life. In contrast, a different offender might be convicted of one very serious sexual offence where the Crown has proceeded by indictment and find himself subject to a SOIRA order for only 20 years.
[25] The Code does provide for early termination of a SOIRA order on application after 20 years where the order was for life: s. 490.015(1)(c). Early termination is available after 10 years where the order was for 20 years: s. 490.015(1)(b). Early termination is available at any time after a pardon or record suspension: s. 490.015(3).
DISPOSITION
[93] The application is granted. The matter is remitted back to the Ontario Court of Justice so that Court can exercise its jurisdiction under s. 490.012 of the Criminal Code.
R.F. Goldstein J.
Released: August 19, 2014
COURT FILE NO.: 13-70000177-00M0
DATE: 20140819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
GERMAN ALVARENGA-ALAS
Respondent
REASONS FOR JUDGMENT
R.F. Goldstein J.